Issue 7 2018 The views expressed by the contributors are not necessarily those of the Editorial or Honorary Board of the Oxford University Undergraduate Law Journal. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors and the authors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom. © 2018 Individual authors OXFORD UNIVERSITY 2 UNDERGRADUATE LAW JOURNAL -The- 7th Editorial Board of the Oxford University Undergraduate Law Journal 2017-2018 Editors-in-Chief Jean Goh Govind Shankar St Peter’s College St John’s College Editors Anna Yamaoka-Enkerlin Kenneth Chong Pembroke College Magdalen College Secretary Daisy Brown St Peter’s College Senior Associate Editors Sam Cadd Tom Pausey Hertford College St Catherine’s College Associate Editors Ming Mak Amelia Tai Worcester College Oriel College Oskar Sherry Jonathan Windsor Lady Margaret Hall College Balliol College Abigail Preston Joseph Bunting Mansfield College Magdalen College Tim Koch Jesus College OXFORD UNIVERSITY 3 UNDERGRADUATE LAW JOURNAL -The- Honorary Board Sir Nicolas Bratza Professor Michael Bridge Donald Findlay QC Professor Christopher Forsyth Ian Gatt QC The Right Hon the Lord Judge The Right Hon the Lord Kerr of Tonaghmore Michael Mansfield QC The Right Hon the Lord Neuberger of Abbotsbury The Right Hon the Lord Phillips of Worth Matravers Lord Pannick QC His Honour Judge Gordon Risius CB Dinah Rose QC Sir Konrad Schiemann The Right Hon the Lord Wilson of Culworth OXFORD UNIVERSITY 4 UNDERGRADUATE LAW JOURNAL CONTENTS I. Foreword Dr Paul Yowell, Fellow of Oriel College and Associate Professor in the 6 Oxford Faculty of Law II. Introduction 8 Jean Goh and Govind Shankar, Editors-in-Chief III. Serious Harm to Corporate Reputation - More Than Just the 10 Money Cara Gao IV. “Possession is nine tenths of the (Common) law”: A comparison of Civil law ‘ownership’ and the rights in English property law, both 39 at Law and in Equity Matthew Hoyle V. Responsible, but not Criminal: A response to States’ normative justifications for a Minimum Age of Criminal Responsibility 60 (MACR) below the age of 12 Oskar Sherry VI. Undue Influence: The Case for a Presumption of Influence between Couples 81 Godwin Tan OXFORD UNIVERSITY 5 UNDERGRADUATE LAW JOURNAL FOREWORD Dr Paul Yowell, Fellow of Oriel College and Associate Professor in the Oxford Faculty of Law Writing for a student law journal benefits both the student who authors an article and the public that forms the potential audience. Students gain the opportunity to explore questions that interest them in a format that goes well beyond the confines of coursework essays. Presenting an argument for public scrutiny incentivises authors to think deeply and thoroughly about issues of policy and to do so in dialogue with a range of academic voices. The student who submits to this discipline becomes a better scholar in the process. The articles in this edition of the Oxford Undergraduate Law Journal are excellent examples of this approach, and of thorough engagement with the policy questions that underlie current legal controversies. Above and beyond the benefit the student authors have gained in this process, the four articles serve the legal profession in offering illuminating and fresh perspectives. Cara Gao engages with modern scholarship on the societal role and ethical responsibility of corporations to argue that libel law should shift its focus from monetary damage to more intangible forms of reputational damage; and she creatively explores a framework of discursive remedies as a means for undoing that damage. Matthew Hoyle uncovers an idea that lawyers and legal theorists often overlook: that the English law of property is not grounded in a notion of absolute ownership (as in some civil law systems) but rather in relative superiority of title; and is vindicated in contexts that often start from the fact of current possession. He explores the policy and practical implications of this and offers sensible advice for thinking, among other things, about ‘ownership’ in the context of trusts. Oskar Sherry compellingly argues that children under the age of twelve do not have the developmental capacities needed to be judged for criminal responsibility, distinguishing this from responsibility more generally, and carefully analysing neuroscientific literature on brain development as well as the moral philosophy at stake in questions about internalisation of norms and submission to external authority. Godwin Tan explores in helpful detail the doctrine of undue influence in contracting, particularly with regard OXFORD UNIVERSITY 6 UNDERGRADUATE LAW JOURNAL to spousal and other close personal relationships, and thoughtfully reflects on advantages and disadvantages of possible solutions for reform of the law. The authors evince competence in a range of methodologies, accenting different approaches: policy and institutional analysis (Gao); historical and comparative study (Hoyle); moral theory juxtaposed with scientific literature (Sherry); and rigorous doctrinal and case analysis (Tan). Collectively the articles reflect the training that Oxford law students receive and the high standards to which they are held. A reader who takes in the whole edition will come away with an overview of a range of current issues and a gratifying sense of having engaged with new arguments and perspectives. Other readers interested in particular topics will be well served by the thoughtful treatment in each of the articles. The authors and editors of this edition deserve congratulations for a valuable contribution to legal scholarship. OXFORD UNIVERSITY 7 UNDERGRADUATE LAW JOURNAL INTRODUCTION Jean Goh and Govind Shankar, Editors-in-Chief It brings us great pleasure to introduce the 7th Edition of the Oxford University Undergraduate Law Journal (‘OUULJ’). This volume features a carefully selected range of articles dealing with complex and fascinating issues. As the first student-run law journal in the United Kingdom, this edition continues our tradition of providing a platform for undergraduate students from Oxford and around the UK to further engage with the study of law. Indeed, in many ways, the OUULJ is a reminder of the depth and richness of the study of law, even at an undergraduate level. While the focus is on areas within the scope of the Oxford BA in Jurisprudence course, the depth of analysis by our contributors and the issues they explore illustrate that our subject goes far beyond neatly bound textbooks and classes. Naturally, this was no easy task. The OUULJ would not be possible without the dedication and efforts of our Editors, Kenneth and Anna, and their team of Associate Editors. Recognition must also go to our contributors who have put painstaking efforts into their work and chosen to place their faith in us. We would also like to give our thanks to the Law Faculty for their support. This Edition begins with Cara Gao’s fascinating piece which considers the value of a corporate reputation in the context of defamation. Following that is Matthew Hoyle’s submission which sheds light on the ideas of proprietary and equitable rights by contrasting the English common law position with civil law jurisdictions such as Germany and France. Next is Oskar Sherry’s intricate piece which juxtaposes the two oft equated concepts of criminality and responsibility with reference to children. And finally, this volume is capped off by Godwin Tan’s perceptive article on undue influence which considers and argues against the exclusion of couples from the traditional categories of presumed influence. OXFORD UNIVERSITY 8 UNDERGRADUATE LAW JOURNAL It is our fervent hope that the OUULJ will continue in its mission to promote legal thought and exploration in the coming years. If you are a student reading this, it is our heartfelt wish that our Journal will inspire you to think outside of your curriculum, to explore the vast reaches of our shared subject and perhaps even to contribute to our next edition. If you are reading this as a legal practitioner, we hope that you have found it useful and illuminating in your course of work. Above all, we hope that our edition will be an entertaining and thought- provoking read. OXFORD UNIVERSITY 9 UNDERGRADUATE LAW JOURNAL Serious Harm to Corporate Reputation - More Than Just the Money Cara Gao1 Introduction At common law, corporations could traditionally sue in defamation without proof of special damage, just like human claimants.2 As confirmed by Theedom v Nourish Training Ltd,3 this is no longer the case. The Defamation Act 2013 (“the 2013 Act”) altered this position by instituting a new statutory restriction in s.1(1) that “[a] statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Further, s.1(2) states that for a “body that trades for profit”, harm to reputation is not “serious harm” unless “it has caused or is likely to cause the body serious financial loss”. This departs from the common law position in Jameel4 and Thornton5 that natural or non-natural persons should not be subject to different rules for bringing a defamation claim. While the statutory intention was to “raise the bar for bringing a defamation claim”,6 the previous common law position has largely prevailed for individual claimants following the recent Court of Appeal judgment in Lachaux v Independent Press Limited.7 Reversing the initial judicial interpretation of s.1(1) that claimants must prove actual or likely serious harm on the balance of probabilities,8 Lachaux clarified that claimants are only required to show that the publication had a “tendency” to cause serious harm to reputation in s.1(1). However, the judgment specifically did not address the position of bodies trading for profit under s.1(2).9 This essay will focus on the 1 I am very grateful to Professor Maria Lee, T.G.